I. Statement of the Case

This matter is before the Authority on an
exception to an award of Arbitrator Gary L. Axon filed by the Agency under
section 7122(a) of the Federal Service Labor-Management Relations Statute (the
Statute) and part 2425 of the Authority's Regulations. The Union filed an
opposition to the Agency's exception.

The Arbitrator found that the Agency had
violated the parties' collective bargaining agreement by failing to distribute
and rotate overtime opportunities equitably among qualified employees. He
remanded to the parties the issue of the appropriate financial compensation for
individual employees. We conclude that the Agency fails to establish that the
award is deficient. Accordingly, we deny the Agency's exception.

II. Background and Arbitrator's Award

The Union filed a grievance, which claimed
that the Agency was violating Article 18, Section (n) of the parties'
collective bargaining agreement [n1] by the
manner in which it distributed overtime opportunities among employees. The
Arbitrator sustained the grievance. The Arbitrator found that the Agency had
failed to distribute and rotate overtime opportunities equitably among
qualified employees. He ruled that management violated the agreement by the
system used to schedule overtime and by its failure to maintain overtime
records.

At arbitration, management described the
system to schedule and distribute overtime as one where employees had the
opportunity to sign up on a list for overtime and where the first qualified
person on the list was offered the opportunity to work overtime. The Arbitrator
found that the system resulted in an inequitable distribution of overtime
opportunities to employees. In addition, he rejected the Agency's argument that
the grievance should be denied because the Union failed to provide sufficient
information to identify any employees who had been denied the opportunity to
work overtime. He refused to allow the Agency to avoid liability on the basis
of its own failure to comply with its contractual obligations to maintain
accurate and complete overtime records.

The Arbitrator specifically disagreed with
the Agency's allegation that no employee had been harmed by the manner in which
it distributed overtime opportunities. The Arbitrator ruled that even without
evidence of individual economic losses, the Agency's violation of the agreement
constituted an unjustified and unwarranted personnel action that had deprived
employees of the ability to work specific overtime assignments, which justified
backpay for those employees wrongly denied the opportunity to earn overtime
compensation. He remanded to the parties the calculation of appropriate
monetary relief for individual employees. He specifically directed that those
employees be paid for the overtime they would have earned had the overtime
opportunities been distributed and rotated equitably among qualified employees,
as required by the collective bargaining agreement.

III. Positions of the Parties

A. Agency's Exception

The Agency contends that the award is
contrary to the Back Pay Act, 5 U.S.C. § 5596 (Act). The Agency argues
that the award of backpay is deficient under the Act because the Arbitrator
failed to identify any instance where an employee suffered a loss of pay as a
result of the violation of the collective bargaining agree [ v55 p29 ] ment. The Agency claims that due to
the system by which overtime was distributed, it is virtually impossible to
determine who would have worked overtime. Consequently, the Agency maintains
that the Arbitrator was unable to show that as a result of the violation of the
agreement, specific individuals would have been offered overtime assignments,
performed overtime work, and received overtime pay.

B. Union's Opposition

The Union contends that the Arbitrator made
sufficient findings to warrant remand to the parties to determine appropriate
backpay. The Union claims that it was the irresponsibility of the Agency in
failing to properly maintain overtime records that prevented evidence of
individual economic loss. The Union argues that the Agency should not be
rewarded for its repudiation of its contractual obligations.

Analysis and Conclusions

A. Standard of Review

When an appealing party's exception involves
whether the award is consistent with law, we review the questions of law raised
by the exception and the award de novo. See, e.g.,
National Treasury Employees Union, Chapter 24 and U.S. Department of the
Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying a
standard of denovo review, we assess whether the
arbitrator's legal conclusions are consistent with the applicable standard of
law. In making that assessment, we defer to the arbitrator's underlying factual
findings. See, e.g., U.S. Department of Health and Human Services
and National Treasury Employees Union, 54 FLRA 1210 (1998) (HHS).

B. Requirements of the Back Pay Act

An award of backpay is authorized under the
Act only when an unjustified or unwarranted personnel action has resulted in
the reduction of an employee's pay, allowances, or differentials. SeeHHS, 54 FLRA at 1218-19 (Authority clarified that a requirement that
the pay loss would not have occurred but for the unwarranted action is not a
separate, independent requirement of the Act, but merely amplifies the causal
connection requirement of the Act). A violation of a collective bargaining
agreement constitutes an unjustified or unwarranted personnel action under the
Act. SeeU.S. Department of Defense, Department of Defense
Dependents Schools and Federal Education Association, 54 FLRA 773, 785
(1998).

C. Application of Requirements

The Arbitrator's finding that the Agency
violated Article 18, Section (n) of the collective bargaining agreement
satisfies the requirement of an unjustified or unwarranted personnel action,
and the Agency does not dispute it. Instead, the Agency disputes whether the
Arbitrator made sufficient findings that the Agency's overtime assignment
practice had resulted in a loss of overtime pay to any individual employee to
allow him to award backpay and remand to the parties to determine the
recipients and the amount. We conclude that the Arbitrator made the necessary
findings.

The Arbitrator expressly found that the
Agency's violation of the agreement constituted an unjustified and unwarranted
personnel action that had deprived employees of the ability to work specific
overtime assignments and that backpay was justified for those employees wrongly
denied the opportunity to work overtime. We find that consistent with the Act,
the Arbitrator sufficiently identified the specific circumstances under which
employees were entitled to backpay. There is no additional requirement for him
to have identified specific employees. SeeFederal Employees Metal
Trades Council, Local 831 and U.S. Department of the Navy, Long Beach Naval
Shipyard, Long Beach, California, 39 FLRA 1456, 1459 (1991) (Long
Beach Naval Shipyard) (when an arbitrator has found the specific
circumstances giving rise to an entitlement to backpay, there is no requirement
in the Act or its implementing regulations for the arbitrator to identify the
specific employees entitled to backpay as a result of the unwarranted action);
Department of the Treasury, U.S. Customs Service and National Treasury
Employees Union, 13 FLRA 386, 387 (1983) (arbitrator made the
necessary findings for an award of backpay because he determined that when
overtime had been assigned in violation of the collective bargaining agreement,
unit employees were available to perform such work; there is no requirement
under the Act to identify any specific employees).

The terms of the award further assure its
consistency with the Act. Pursuant to the award, no employee will receive
backpay unless the employee would have worked an overtime assignment but for
the Agency's distribution system. The Agency's complaint about the difficulty
in identifying these employees does not implicate the requirements of the Act,
but rather implicates a matter of compliance and implementation. The
Arbitrator's direction to the parties in this case is no different than the
Authority's own direction to the parties in Long Beach Naval Shipyard.
See 39 FLRA at 1460. Accordingly, we deny the Agency's exception.

V. Decision

The Agency's exception is denied.

Footnote # 1 for 55 FLRA No. 12

Article 18, Section (n) provides in
pertinent part:

Opportunities for overtime shall be distributed and rotated
equitably among qualified employees. Specific procedures . . . may be
negotiated locally. . . . Overtime records including sign-up lists, offers made
by the Employer for overtime, and overtime assignments, will be monitored by
the Employer and the Union to . . . ensure equitable distribution of overtime
assignments to members of the unit.